AS (Afghanistan) v Secretary of State for the Home Department

Country guidance must be treated as authoritative on the issues it decides, but it does not prevent a tribunal reaching a different outcome where adequate reasons identify materially different personal circumstances, changed conditions, or both. In assessing Article 3 risk on internal relocation, the tribunal may consider cumulative factors including prior insurgent activity, family connections, the time spent abroad, proximity to the proposed destination, the likelihood of information emerging, and current security conditions. Exclusion from refugee protection under Article 1F remains relevant to the risk assessment and does not remove Article 3 protection in principle. A detention-risk conclusion is lawful where supported by country material and adequately reasoned.

The Secretary of State renewed an application for permission to appeal against an Asylum & Immigration Tribunal reconsideration decision. The Tribunal had allowed the respondent’s appeal under Article 3 of the European Convention on Human Rights, although it had accepted that he was excluded from refugee protection under Article 1F of the Refugee Convention.

The Tribunal accepted a risk of ill-treatment in the respondent’s local area and found that internal relocation to Kabul was unsafe. It distinguished the country guidance in PM & Ors (Kabul -- Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089. The central issue was whether the Tribunal had given adequate and rational reasons for reaching a different Article 3 risk conclusion, including in relation to detention conditions.

The renewed application for permission to appeal was refused. The Tribunal’s decision was careful, adequately reasoned and rational.

1. Country guidance. PM & Ors (Kabul -- Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089 was authoritative on the issues identified in that decision and had to be taken into account. It did not prevent a different conclusion where the present circumstances were materially distinguishable. The Tribunal identified the respondent’s own Taliban involvement, his family connections, the deaths of his father and brother apparently at the hands of government forces, his absence from Afghanistan for only two years, the proximity of his home area to Kabul, the conceded risk in that area, the likelihood that his background would be discovered, and the increased insurgency and counter-terrorism measures.
2. Article 1F and Article 3. The fact that the respondent’s conduct was sufficient to deny him refugee protection under Article 1F of the Refugee Convention could properly form part of the reasoning on risk. It remained relevant to the risk in Kabul and did not itself create an irrational conclusion. Article 3 protection remained available in principle.
3. Detention risk. The Tribunal referred to relevant background information and to PM’s discussion of torture and serious mistreatment in detention and interrogation. It also took account of PM’s observation that conditions in Kabul appeared less severe than elsewhere. The conclusion that detention created a real risk of Article 3 ill-treatment was sufficiently reasoned and rational.
4. Internal relocation and restraint. Because Kabul was found unsafe, there was no need to consider whether relocation there would be unduly harsh. An appellate court should be slow to interfere with a careful decision of this kind. Order: application refused.

• Court of Appeal (Civil Division): On 23 July 2008, Lord Justice Richards refused the Secretary of State’s renewed application for permission to appeal and dismissed the application. The decision is reported under [2008] EWCA Civ 974.
• Asylum & Immigration Tribunal: On reconsideration, the Tribunal allowed the respondent’s appeal under Article 3, finding that internal relocation to Kabul was unsafe. Permission to appeal was refused by the Tribunal and by Keene LJ on the papers.